Monthly Archives: June 2013

At the end of last year, the European Parliament in Strasbourg adopted two draft regulations on the creation of the unitary patent as part of the “patent package” which also includes the creation of a Unified Patent Court (UPC).

“Cutting the costs of patenting inventions in Europe will strongly benefit European enterprises, especially research centres and SMEs. The vision of the founding fathers of the EPO to equip the European economy with a truly supranational patent system can now become a reality, strengthening Europe’s competitiveness.”

The unitary patent will have effect in the 25 participating European states and will allow for a more straightforward European patent system. It is based on two regulations and an international agreement, the first regulation creates the instrument and the second deals with the applicable language regime for the new patent. The UPC is the third and last component of the “patent package” and will be set up under an international convention. This will create a unified patent litigation system and will function as a single patent jurisdiction concerning infringement and validity questions related to unitary patents.

The agreement establishing the UPC was signed by 24 states on the 19 February 2013 (followed by Bulgaria on 5 March 2013) and will enter into force once thirteen EU member states have ratified the package, including France, Germany and the UK.

The unitary patent will co-exist with national patents and the classical European patent, with which it shares the legal basis and the procedure for grant (as laid out in the European Patent Convention). The only difference will occur in the post-grant phase, and unitary patents will be treated as a single patent. Therefore they will no longer need to be validated or translated, nor will they need to be administered nationally in each and every state. This will not only simplify the patent process but it will also lead to massive savings in terms of time and costs. The changes should make Europe more attractive for innovation and investors, bringing it on a par with its competitors in Asia and the US.

In a submission to the United Nations’ Human Rights Council Council for the second Universal Periodic Review of New Zealand’s human rights record, the Law Society identified a need to strengthen mechanisms for the protection of human rights in New Zealand.

The Law Society asserted that there were a number of legislative measures that could hinder the country in meeting domestic and international human rights obligations.

The President of the Law Society, Chris Moore, states that New Zealand’s human rights record fares well in general, this largely depends on rigorous scrutiny of policy and legislation due to constitutional arrangements. He added that because there is no supreme bill of rights or entrenched constitution, the system relies on close observation of the rule of law combined with political restraint. Therefore it is crucial to address concerns and inconsistencies with human rights standards once they have been identified. Moore states:

“Unfortunately on a number of recent occasions legislation has been passed despite conflicting with the rule of law and human rights.”

The Law Society has urged New Zealand to take action in a number of areas to ensure it complies with human rights standards and the rule of law.

“There have been twelve pieces of legislation in recent years that have been identified as inconsistent with the rights and freedoms protected in the New Zealand Bill of Rights, and on a number of occasions urgency has been used in Parliament to limit or bypass select committee scrutiny,” he said.

Among the most recent legislation cited by the Committee, is the controversial Public Health and Disability Amendment Act 2013. Both the Attorney General’s report as well as the Law society pointed out that the Act appeared to be inconsistent with the right to freedom from discrimination and the right to judicial review under section 27 of the Bill of Rights. However the Bill was passed under urgency, thus bypassing the select committee process and denying public submissions. The Law Society took the following position:

“Not allowing the courts to review decisions made in exercise of a legislative function and refusing to provide reasons for rushing the legislation through is quite alien to the expectations we have of our parliamentary process.”

The Law Society expressed its concerns regarding the use of parliamentary urgency to pass bills stating that “[m]isuse of urgency, particularly where it is used to bypass the select committee process, offends against principles of democratic legitimacy”.

Moore listed a number of other bills that raise serious questions regarding New Zealand’s compliance with both international and domestic human rights obligations.

In response to these concerns, the Law Society’s has proposed for the government to take concrete, targeted steps in order to increase the visibility of international human rights obligations in New Zealand. In its submission, the Law Society has also advised that the government establishes a formal process for publicising, considering and responding to human rights recommendations by United Nations bodies.

This short film by the International Red Cross explains some of the background behind the Arms Trade Treaty signed last week by over 60 countries.

In the film Kathleen Lawand, Head of the Arms Unit at the International Committee of the Red Cross emphasised the importance of key aspects of the Treaty. She points out that the Treaty states that a country “shall not authorise the transfer of weapons if it knows that these weapons would be used to commit genocide crimes against humanity or war crimes”

She adds that the Treaty also says “that even if a state does not know for sure that the weapons would be used to commit such crimes it must assess the risk that they could be used to commit serious violations of international humanitarian law or human rights law”.

This is particularly significant in terms of the legal context of the Treaty, as well as shifting responsibility of the consequences of arms exports onto the exporting states.

The Arms Trade Treaty (ATT), which was signed by 67 states last week, offers a much needed response to the human suffering caused by the widespread availability of weapons. The new Treaty stipulates that states must not transfer weapons or ammunition, if they know that these would be used to commit certain war crimes.

The UN Secretary-General Ban Ki-moon’s stated:

“I wholeheartedly welcome the adoption, today, of a first-ever Arms Trade Treaty by the General Assembly. It is a historic diplomatic achievement — the culmination of long-held dreams and many years of effort.”

The Treaty signing event

The Treaty was adopted by vote by 154 members states on the 2nd of April 2013, with 23 abstentions and only three countries voting against – North Korea, Iran and Syria. Ban Ki Moon was optimistic about the impact this legislation will make in addressing human rights violations and armed conflict.

“It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.
I applaud states for their willingness to compromise on a number of complex issues, thus making it possible for us to have a balanced and robust Treaty text. I commend the members of civil society for the critical role they played from the inception of this process, through their expert contributions and enthusiastic support.”

The United States’ representative emphasised that “This Treaty sets a floor, not a ceiling” for the regulation of the international trade in conventional arms. Stating that when taken together, the Treaty’s articles provided a “robust and complementary” framework that would “ensure responsible behaviour” by state parties.

South Africa’s delegate added that the Treaty “filled a glaring gap” in the global conventional arms control system, by introducing high norms and criteria to which states would adhere when considering arms transfers. Under the Treaty state parties will be required to establish national transfer control legislation, as well as official administrative guidelines, national inspectorates, punitive and practical enforcement measures for transgressions.

Among those not in favour of the Treaty, Syria’s delegate pointed out that a number of states were supplying weapons to “terrorist groups” including those in Syria, and that this explained why they objected to a paragraph banning the supply of weapons to unauthorized non-State actors. “This is political hypocrisy, and a clear indication that the draft Treaty is greatly selective and, thus, cannot reach consensus.”

However, the representative of Colombia, Néstor Osorio, who was also speaking on behalf of a number of other countries (the Bahamas, Belize, Chile, El Salvador, Guatemala, Jamaica, Mexico, Peru, Trinidad and Tobago and Uruguay), said in the circumstances the resulting text was the best that could have been achieved. As it “created a common international regime to regulate the arms trade, and offered the chance to further develop a more robust control regime, notably through amendments to the Treaty and adjustments to implementation at the Conferences of States Parties”.

The delegate of Argentina signing the ATT, 67 states have signed the Treaty since it was opened for signature on the 3rd of June last week.

The ambassador of Australia, Peter Woolcott received praise for the transparent manner in which he conducted his presidency of the Final Conference that produced the final version of the text. Ambassador Roberto García Moritán of Argentina, was also recognised for his longstanding commitment and staunch leadership of the ATT process.

The adoption of this Treaty demonstrates the instrumental function of the United Nations in providing a platform through which governments and civil society can work together. Ban Ki Moon indicated that the adoption of the Treaty is only the first step and called upon “all Governments to join forces with civil society to ensure its full and effective implementation”.